Public Safety vs. Free Speech: BART’s Cellular Shutdown

13Sep11

A potential watershed event in the public policy vs. First Amendment debate occurred in San Francisco on Aug. 11 when Bay Area Rapid Transit [BART] – facing an anticipated protest over a fatal shooting by BART police – chose to temporarily block cell phone service in the platform and concourse areas of some of its train stations.

The move was not made lightly. An earlier protest – just days after the July 3 shooting of Charles Hill at BART’s Civic Center Station – resulted in one person climbing atop a BART train while others blocked or held open train doors. In all, such unlawful activities disrupted service for 96 trains – about two-thirds of BART’s rush-hour operations – and, in turn, placed the safety of “thousands of passengers and BART employees” in jeopardy, BART officials said. Citing passenger safety as “top priority,” BART decided it would block cellular service when it received “credible information” on Aug. 10 that protesters organized in color-coded teams planned to use cell phones to coordinate activities, and report the locations and movements of police.

In recent years – and in arenas great and small – social/mobile media increasingly have emerged as a crucial tool to thwart authority. On a larger scale, they have aided the toppling of totalitarian regimes in Tunisia, Egypt, and Libya, along with uprisings in more than a half-dozen other nations that seek political reform. On a smaller scale, smart phone apps that access public safety radio frequencies [at least those that are retransmitted via internet] have been used by self-described anarchists to thwart police activities [such as during Pittsburgh’s G20 summit in 2009], or by gang members to evade arrest. Cell phones also have been used to organize “flash robs” that temporarily overwhelm store security personnel.

Some authorities have responded by arresting people who carry police radio apps on their smart phones [this happened in Muncie, Ind., earlier this year]. Law enforcement agencies that can afford the technology have began to encrypt or scramble radio communications – a move that denies law-abiding citizens information about what is happening in their communities. Still other agencies, such as the Los Angeles Police Department, merely place a two-minute delay on radio traffic carried over the internet.

While such steps are controversial in their own right, the decision to completely block commercial cell phone service in a nation that prides itself as an example for free speech and expression – in many respects – smacks of the kind of tactics that totalitarian regimes such as China, Iran, or Syria use to stifle public dissent.

It comes as no surprise that the Federal Communications Commission is examining the legality of such a move. Interest groups such as the Broadband Institute of California, Center for Democracy and Technology, and Media Access Project [among others] argue that BART violated Title II of the Federal Communications Act of 1934 by “deliberately blocking” commercial mobile radio service without seeking guidelines from appropriate local or federal authorities.

For its part, BART defends its actions by stating the interruptions “did not affect any First Amendment rights of any person to protest in a lawful manner in areas at BART stations that are open for expressive activity.” Yet the question remains: How far is too far when constitutional rights to free speech are impinged in the name of public safety?